THIS WEEK IN RACE features critical commentary on the language and images of race in American social and political life.

6/29/2009

Framing the Ricci Decision

Even though we had a really nice blog about images of Michelle Obama almost finished, we switched gears at the last minute to provide an analysis of the United States Supreme Court's decision in the Ricci v. DeStefano case yesterday morning. We apologize for the tardiness of THIS WEEK's entry.

The case (which involves White firefighters in New Haven, Connecticut suing because the results of an exam designed to lead to promotion were tossed out because the results would have led to disproportionate promotions of Whites over applicants of color) is quite compelling for a number of reasons. TWIR readers might suspect that we would side with the four dissenters, who, anchored by Justice Ginsburg, who authored the dissent, noted that the majority of the Court failed to take historical context into consideration. While it is true that we would have voted with Justices Ginsburg, Souter, Stevens and Breyer, we do not dismiss the claims made by Justice Kennedy in his majority opinion. Specifically, Kennedy argues that a problem with this case (the facts of which we have discussed previously) is that the city of New Haven determined that the test was racially biased solely based on the output (i.e., that candidates for promotion based on the test would be overwhelmingly and disproportionately White).

From our perspective, such disproportionate results should be a red flag that something is wrong with the test, but there should be a thorough analysis of the test to determine why and to what extent there was inherent bias in the questions, tasks assigned, etc. The justices in the majority believe that there was not enough proof of bias, while the dissenters believe that there is. We strongly suspect that the test was biased, but we cannot ignore the fact that, with such a small sample of test takers, it is possible that the White candidates were simply the best.

IF that is the case (and it is a big "if"), it is important to ask the next question: Why were the White test takers "the best?" Is there something about the socialization process in the fire department that cultivates White firefighters toward management more effectively than firefighters of color? Is the test predicated on other educational characteristics that, in New Haven like everywhere else in America, unfairly benefit Whites? If so, are those characteristics essential to the tasks associated with management? Should New Haven adopt an affirmative action program to level that playing field?

These are all important issues that strike at the heart of what it means to be a person of color competing for jobs, promotions, and access to education, housing etc. in a context where Whites have decided advantages at almost every turn. But while it is appropriate for the Court to take those issues into consideration (as Justice Ginsburg notes), they are charged only with deciding the case that is before them.

In short, while New Haven officials had the right idea (that is, they understand that biases exist, appreciate the value of a diverse workplace, etc.), they goofed it this time. Particularly in this climate where Whites are sensitive (we think overly sensitive) about discrimination against them), we must be very careful to document carefully findings of bias where they are found to exist. But, like the landmark affirmative action decisions in 1978 and 2003, this means only that folks committed to social justice and equality of opportunity need to be more thoughtful about how to achieve those goals. In the Bakke decision in 1978, for instance, the Court (correctly, we believe) suggested, in effect, that the Regents of the University of California were trying to kill an ant with a sledgehammer, and so ruled quotas to be unconstitutional (this will come as a shock to folks who have been listening to opponents of affirmative action incorrectly assert that quotas are still in effect). What is needed now is a process by which scholars are routinely asked to evaluate tests where the results produce outputs that suggest potential bias. We see nothing in the Court's opinion THIS WEEK to suggest such an effort would not be permitted and, as suggested by Justice O'Connor's majority opinion in one of the 2003 cases, welcomed (at least for now).

But what of the press's reaction to the decision?

Stephen is in the midst of his annual course for the Junior State of America summer school at Princeton University, where he had just finished explaining the concept of framing to the students in his Political Communication course. In short, framing is the act of putting information into context. Whether intentional or not, the frame changes the way information is perceived by the reader/viewer by focusing on some aspects of the story over others. In fact, in her dissent in this case, Justice Ginsburg suggests that the Court's majority in this decision has selected a particular frame: "The Court’s recitation of the facts leaves out important parts of the story."

Just hours after the decision was announced (and before much reaction was available), he asked the students to come up with a number of possible frames for the Ricci decision by way of predicting headlines; some of those frames appear below with elaboration and examples from today's blogs and press stories that confirm the existence (or, in one case, absence) of those frames.

Frame 1: Racial Conflict

Perhaps the most likely of frames, this was the most common amongst the primary news outlets in the past 24 hours (see below). Headlines that indicate that Whites prevailed over discrimination are alternatives to those that would indicate that people of color have suffered a setback. In either case (and we see none of the latter among the primary news outlets), the suggestion is that there is an ongoing competition between Whites and non-Whites in America for jobs. In many respects, of course, this is true. Just as frames do not have to be intentional, they certainly do not have to be misleading or incorrect. The point is that by highlighting some aspects of a story at the expense of others, readers or viewers are encouraged to think about the story in some ways but not others.

This frame presupposes that Whites have been taking it on the chin in recent years and that yesterday's ruling was a line in the sand and a victory for those who are "fair minded" and/or "race neutral." After all, if one believes that everyone in America has an equal chance of making it, that so long as we are not bigoted we are not racist, and that minorities want that which they do not rightfully deserve (because they are lazy), affirmative action in general and the act of overturning such an ostensibly objective test because results were not of the government's liking are signs of "reverse discrimination." This frame highlights the fairness of the Court's decision by implying that such a decision is overdue.

The Wall Street Journal's headline (Ruling Upends Race's Role in Hiring), which features this frame, is actually quite misleading. The suggestion here is that race can no longer be taken into account in hiring practices. The first paragraph of the story reinforces this notion (scholars often look at headlines and lead paragraphs to determine frames): "The Supreme Court set a new standard for employers' use of race in hiring decisions, ruling that New Haven, Conn., wrongly discriminated against a group of mostly white firefighters who lost out when a promotion exam was scrapped because no blacks scored well enough to advance." After that, the authors quote from Justice Kennedy's opinion, which makes it clear that race can, in fact, be taken into account, but that there must be strong evidence of bias. One can understand, though, how a reader encountering that information after being presented with a headline and lead paragraph such as this would not view the quote from the opinion as it was clearly intended, but rather as a minor adjustment to the stronger sentiment implied by the frame.

Frame 3: Ideological Struggle

Because Justice Souter is stepping down, it is understandable that there would be some interest in the ideological composition of the Court. USA Today's headline indicates as much (High court curves in conservative direction), though the frame leads readers to ignore the fact that Souter sided with the dissenters, which means that his replacement would not change the balance of ideology, at least with respect to this issue. In other words, Souter's replacement, if he or she were on the Court instead of him during this decision, would not have made a difference in the outcome. (The only possibility would have been a larger win for the petitioners.)

Frame 4: Sotomayor Overturned

Because Judge Sonia Sotomayor was part of the three-judge panel that issued the un-authored appeals court decision in favor of the city of New Haven, many have looked at this case as a referendum on her judicial temperament. Such a claim is absurd, of course, as many former and current justices have had their opinions reversed before being appointed to the Supreme Court. Further, conservative commentators latched onto Justice Ginsburg's point that the Circuit Court should not have granted summary judgment, such that many of them -- in language that appears to lend additional credibility to Cappella and Jamieson's finding that conservatives operate in an "echo chamber" -- claimed a 9-0 vote against Sotomayor.

Despite the fact that conservatives are generally on the side of "judicial restraint," they are clear that they would like to see Courts "act" to overturn policies that violate their ideological predispositions (such as legal access to abortion and affirmative action). In this case, the elected officials of the city made a decision that was upheld (not "actively" reversed) by the appeals court, so one could imagine a frame whereby the Supreme Court was chastised as interfering in the workings of democratically elected officials.

We have seen no such frame in primary press.

At the end of the day, Justice Ginsburg provides compelling reasons -- reasons we did not rehash here -- that the test was, indeed, flawed and that it should have been replaced. Since Whites are never systemically disadvantaged -- any perceived "disadvantages" come as a result of programs designed to rectify systemic advantages that they have -- they have no schema available to understand how an ostensibly "objective" test could possibly be unfair. TWIR readers understand, of course, that built-in privilege is, as Peggy Macintosh has famously said, invisible. Eventually, more and more folks will understand how systemic racism works. But, at least for now, to paraphrase the legendary Cubs chant: "White guys win! White guys win! White guys win!"

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Stephen Maynard Caliendo (top) is Associate Professor of Political Science at North Central College. Charlton McIlwain (bottom) is Assistant Professor of Culture & Communication at New York University. They are co-investigators on The Project on Race in Political Communication.